The Governor General's choice

The Governor General sought legal advice last week in respect of her connection with Labor Minister Bill Shorten. Paul Kelly in The Australian yesterday weighed in by advising the Governor General to avoid any activism in her role. Kelly suggested that the Governor General's job is to ensure that anyone claiming to be able to form a Government will be able to survive a no confidence motion in the lower house (not just afternoon tea at Yarralumla).

My advice to the Governor General is much simpler: do whatever you like. It may come as some surprise to those who have not read our Constitution, but Quentin Bryce has a prerogative power which can be exercised at her whim.

Conflicts of interest and pre-existing political sympathies have been features of many previous appointments to the role of Governor General. Indeed, by comparison, Bryce's issue looks very minor indeed. Consider, for example, when our Governor General was Sir Paul Hasluck (after which the ultra-marginal seat of Hasluck is named). Hasluck was elected as a Liberal MP but resigned from the Menzies Government in 1969 to take up the role of Governor General. He held the spot until he resigned in 1974. Obviously, the Governor General had a political history and ideological sympathies, but this raised no concerns in his appointment.

This was a series of events which was set to be repeated, but on the other side of politics. Bill Hayden was elected as a Labour MP in 1961 and served as a Minister in the Whitlam Government. After the dismissal, Hayden became leader of the opposition before Hawke pipped him for that job in 1983. He went on to serve as Governor General between 1989 and 1996.

So the role of Governor General has often been closely affiliated with politics and political parties. In this context, it seems vaguely ridiculous that Bryce felt the need to obtain legal advice.

One of the issues is, of course, that the role of Governor General has the potential to be politically controversial. The sacking of Gough Whitlam is the obvious example. The prerogative powers permit a Governor General to sack a Prime Minister where they do not have the confidence of the lower house of parliament (ironically, Whitlam did have the confidence of the House of Representatives). The option is then available to either go to a poll (which is the conventional approach) or to invite the opposition leader to form a government.

Sound unlikely? Well it happened, though in a state setting, in New South Wales in 1931. Jack Lang was sacked by the Governor of NSW for failing to collect Commonwealth tax. The Governor believed this was in breach of the law and dismissed Lang and this was despite Lang having the numbers in the lower house.

Technically, this was not the job of the Governor. As mentioned, the Governor's role, by convention, is to appoint a government if the relevant leader (in this case a Premier) has the confidence of the lower house. To dismiss Lang for what was essentially an irrelevant consideration would seem to be a breach of Convention albeit not subject to judicial review.

But it was not unlawful - precisely because prerogative powers are exactly that - the prerogative of the Queen and her Vice-regal representatives. So even if the Governor General takes irrelevant factors into account, there is absolutely nothing an elected leader can do about it. The only option is for the leader to take the initiative and sack the Governor General before they do the sacking themselves.

Given the complex political situation currently unfolding in Australia, Bryce is hardly in an envious position. But her prerogative powers remain hers to exercise as she sees fit.

So what do we take from all this? Our democracy is fragile and relies heavily on conventions rather than strict enforceable rules. But equally such conventions make the system responsive to the political trends of the day. For Quentin Bryce, the conclusion is that any personal conflicts of interest are completely irrelevant and whilst she may be wise to accept Paul Kelly's advice, ultimately, she can do whatever she likes.

Elizabeth O'Shea is responsible for Maurice Blackburn's Social Justice practice working on cases which address issues of community concern and further the public good.

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